MST. AMBO JAN Versus ASSISTANT SETTLEMENT COMMISSIONER (LANDS),

ABDUL HAKEEM KHAN. J.----- By his order dated 24th September 1968, ,the Settlement Commissioner dismissed the Revision Petition filed by Mohammad Ayub and Mohammad Yunas who were put in possession of the shop by Mst. Ambo Jan the mortgagee, on the ground that they could not be said to be in occupation of the shop for. they were tenants of Mst. Ambo Jan and they had already been transferred other houses and shops. He also cancelled the transfer in favour of Mst. Ambo Jan on the ground that the shop was situated in major village and that t11st. Ambo Jan had not at all applied for the transfer of the shop under the Settlement Scheme No. VII. This order of the Settlement Commissioner was questioned by two writ petitions ; one filed by 41st Ambo Jan and the other Mohammad Ayub and Muhammad Yunas. Our learned brother Qaisar Khan, J. was of the opinion that the only dispute between the parties was as to which was entitled to the transfer of the shop and since he had in an earlier case held that the person in actual possession, even though a tenant, was entitled to transfer under Settlement Scheme No. VII as against the other under whom he is a tenant and this view was in conflict with a decision of his Lordship, the Chief Justice, Qaisar Khan, J. therefore formulated that the matter should be referred to a larger Bench on the following question:-?

Whether an allottee or for that matter any other person in authorised possession of evacuee property or the person in actual occupation of the property as tenant under the said allottee or the said other person is to be treated in occupation for the purposes of transfer of evacuee property under Settlement Scheme No. VII.

The matter has been referred to us by his Lordship, the Chief Justice, and we proceed to give our views :-?

2. Since both the sides invoked paragraph 3 of Settlement Scheme No. VII as amended and reconstituted we should like to reproduce the same in so far as it is relevant for the disposal of the present reference :?

"3. Manner of disposal.-(1) Notwithstanding any thing contained in any other Settlement Scheme, a claimant, a non-claimant displaced person or a local who has been in occupation of a rural property of any value situated within an extended area, or a house or a shop of the value of Rs. 10,000 or more in a rural area since before the 1st day of January 1961, shall if he applies in this behalf, be entitled to its transfer on payment of the price hereinafter provided-

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3. It will be seen that the controversy revolves round the word "occupation" as it occurs in the above quotation. It is conceded that this expression has been nether defined in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) under which the Scheme was framed nor in the Scheme itself. Section 2(6) of the Act only defines 'possession' and the notification made under the second proviso thereto which was introduced by the Ordinance L1I1 of 1959 for the first time treated "undisputed occupation" since before the 21st day of December 1958 as 'possession' for the purposes of the Act. It is noteworthy that the word "undisputed" has been omitted in paragraph 3 of the Scheme with the result that it is now possible to canvass the argument that expression "possession" is not synonymous with the expression "occupation" and that the intention of the Legislature was to make such persons also eligible for allotments under Scheme No. VII who could not be said to be in possession as that expression has been used in the Act. Even though both the expressions can be qualified with the words actual, 'notional', 'symbolical', 'physical', 'disputed', 'undisputed', 'temporary', 'permanent', and so on and so forth, the fact remains that a bard and fast line cannot be drawn and a precise definition of each expression cannot be attempted. There is bound to be overlapping somewhere. In the circumstances, the context in which the expression 'occupation' has been used and the legislative intendment as it can be gleaned from the preamble will have to be taken into consideration and only such interpretation is placed as would be in harmony with the fundamentals of jurisprudence. In this connection, reference with benefit may be made to Syed Akhlaque Hussain v. Habib Ismail Bajwa (P L D 1969 Lah. 563).

4. With an equally intriguing situation, a Division Bench of the Mysore High Court was confronted where they were called upon to define expression "occupation" as it occurs in Mysore House Rent and Accommodation Control Order, vide Ratilal Bros. v. The Government of Mysore and others (A I R 1951 Mys. 66), their Lordships found the premises in occupation of an association the members of which could not possibly reside together in either of the two cases directly if the members themselves conducted the school or constructively if the same was to be done through others, after making the following observations in para. 5 of the report which are pertinent :-

The term "occupation' is not defined in the House Rent Control Order and seems to have wider signification than 'residence'. Such a construction has been placed on it in the application of other enactments in which the word is used. In Baladin v. Lakhan Singh A I R 1927 All. 214 : (99 1 C 376) it was observed that the word 'occupation' in section 60(c), Civil Procedure Code, does not necessarily mean residence only. In Emperor v. Taylor, 10 Born. L R 38, the question as to how the word "occupation" in the Factories Act is to be construed arose for consideration, Chandravarkar, J., remarked : "What is an occupation is a question of fact in each case to be determined with reference to certain well-known principles of law. The learned Magistrate who has made the reference seems to think that the legal meaning of "occupier" is a person who is in actual possession. But a person may occupy or possess a land or building actually or constructively. . . The question who is the occupier of the factory must therefore depend among others upon these considerations namely who alone has the right of using the factory for the purpose for which it is constructed and worked .... whose is the predominant possession of and general superintendence over it." The word 'occupy' is a word of uncertain meaning. Sometimes it indicates legal possession in the technical sense. At other times 'occupation' denotes nothing more than physical presence in a place for a substantial period of time. In Queen v. The Justices of the West Riding of Yorkshire (1842) 114 E R 198 (2 Q B 504) Patterson, J. expressed thus:

"'Now I quite concede that the word 'occupy' applies to a house, conveys to any man the meaning of living in the house ; ninety-nine persons in a hundred, at least would so understand it .... Even "actual occupation" would not necessarily mean 'residence', because a man might dwell in one parich and "rent a house and land in the adjoining one, occupying it by his servants, some other words therefore, are necessary to show residence. Wightman, J., explicitly said "A man may occupy either land or dwelling house without residing . . . ."

5. There are two other cases from Indian Jurisdiction which can be referred to with advantage. Both the cases are under the U. P. Zamindari Abolition and Land Reform Act (I of 1951), which Act conferred certain rights upon the occupants. The first is Paltu v. Jolt Prasad (A I R 1958 All. 544), where?in section 16 of the said Act, came in for interpretation and it was held that occupant udder section 16 means an 'occupant' on account of some right of his own and that if he has no right of his own he would not be entitled to possession. In that case mortgagee's possession after the redemption decree obtained by the respondent, was not considered to be that of an occupant in his own right. The matter has been however settled beyond dispute by an authoritative pronouncement of the Indian Supreme Court in the second case viz. : Upper Ganges ,Sugar Mills Ltd. v. Khalilur Rehman and others head-note (a) whereof is to the following effect:-

The word 'occupant' used in section 20(b) is not a term of art and has not been defined anywhere in the Act or in the U. P. Tenancy Act or in the U. P. Land Revenue Act. It must therefore be given its ordinary dictionary meaning which is "a person in occupation". In order therefore that a person can take the benefit of section 20 he should have been recorded in occupation of the land in dispute in the year 1356-F. The only limitation that has been placed by judicial decisions on this meaning of the word "occupant" is that the person should be in occupation in his own right and not on behalf of someone else. So long therefore as the person has been in occupation in the relevant year in his own right (and not on behalf of someone else) he will be entitled to the rights conferred under section 20 of the Act. Where a person in occupation was ordered to be ejected on November 3, 1948, which was in 1356-F and thereafter he remained in possession because of the stay orders passed by the appellate Courts to which it went in appeal successively, it cannot be said simply because there were stay orders as a result of which the person continued to remain in possession that he was in possession on behalf of the Court. He must be held to have remained in possession in the same right in which he was in possession before November 3, 1948. and his possession thereafter cannot be said to be on behalf of the Court.

6. It also appears to us that the above view of the law is in accord with the two decisions of the West Pakistan Peshawar High Court in Syed Mohammad Munir Shah v. Mst. Akbar Jan and others (P L D 1963 Lah. 59) and Agha Shaukat All v. Settlement and Rehabilitation Commissioner, Lahore and another (P L D 1965 Lah. 445). It is true that the precise expression 'occupation' was not the subject of interpretation is either of the two cases and that their Lordships were dealing with the expression 'possession' rationale can be pressed into service with equal force for the purpose of interpretation in the present case. In Sayed Mohammad Munir Shah's case facts of which are quite similar to the case before us, Shabir Ahmad, J. held that mortgagee Mst Akbar Jan had a better claim as against the persons who had been inducted in the property by her as tenants and in Agha Shaukat All Shah's case, a Division Bench turned down the case of a person in possession as a guest or licensee of another. That the possession of a licensee is nontheless the actual occupation of the licensor, is a proposition which has the support of a decision of the Indian Supreme Court in the Cantonment Board, Ambala Cantonment v. Dipak Parkash and others (AIR 1963 S C 963) wherein their Lordships construed the word `occupation' as it occurs in section 99(2)(f) of the Cantonment Act of 1924 as actual occupation and added that it was difficult to agree that when a person entitled to actual occupation by reason of lease, permits another to occupy it then it ceases to be in actual occupation of the person so permitting. In that case a Military Officer was permitted to be in possession of the house acquired under section 7 of the Cantonments (House Accommodation) Act, 1923 and it was observed that the house for the purposes of section 99(2)(f) of the Cantonments Act of 1924 would be in occupation of the Central Government through the Military Officer whom it bad permitted to reside in it.

7. It cannot be overlooked that the Act was brought on the statute Book so as to provide for payment of compensation to certain displaced persons for losses suffered by them and to rehabilitate others and furthermore to make provisions for matters incidental thereto or connected therewith. Once it is conceded that Mst. Ambo Jan was a person in possession within the contemplation of the Act and she had inducted Ayub and Muhammad Yunas as tenants under her, the occupation of the latter is as a matter of fact occupation of the former. How can they be allowed to turn round and deny the title of their landlady. Their occupation was evidently not in their own right but on account of the rights that Mst. Ambo Jan had. For the reason s we will hold that where a person in actual occupation of the property is not in occupation in his own right but as a tenant of another person, the latter and not the former shall be treated to be in occupation for the purpose of transfer of evacuee property under Settlement Scheme No. VII.

8. The matter is now being sent back to the learned Single Judge for disposal of the Writ Petition.

S. A. H. ?????????????????????????????????????????????????????????????????????????????????? Answered accordingly.